BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF OREGON
for the
DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING
IN THE MATTER OF THE PROPOSED ) PROPOSED ORDER
REVOCATION OF THE BASIC, )
INTERMEDIATE AND ADVANCED ) OAH Case No. 115234
CORRECTIONS CERTIFICATIONS ) DPSST No. 24814
ISSUED TO )
)
COLIN W. CHARBONNEAU )
HISTORY OF THE CASE
On April 7, 2004, the Department of Public Safety Standards and Training (the
Department) issued a Contested Case Notice of Intent to Revoke, Opportunity to be Heard, and
Final Order Revoking Certifications if No Request for Hearing is Received (Notice). The Notice
was issued on the grounds that Respondent had been “discharged for cause” from employment as
a corrections officer. Respondent requested a hearing challenging the Notice.
The Department referred the request to the Office of Administrative Hearings (OAH) on
May 4, 2004. A hearing was held on July 22, 2004 in Salem, Oregon. Administrative Law
Judge Paul Hegstrom of the Office of Administrative Hearings presided. Respondent was
present and testified at the hearing. Respondent was represented by Counsel Mary Nester. The
Department was represented by Certified Law Student Jeremy Rice, under the direction of
Assistant Attorney General Timothy Thompson. Testifying on behalf of the Department were
Theresa King, Department Revocation/Denial Coordinator and Washington County Sheriff Rob
Gordon. The record was closed at the conclusion of the hearing on July 22, 2004.
ISSUES
(1) Whether Respondent was discharged for cause from employment as a public safety
officer?1 ORS 181.662(3) and OAR 259-008-0070(2) (a).
(2) If so, whether the above discharge for cause requires the revocation of Respondent's
certification as a corrections officer by the Department. ORS 181.662(3).
1
ORS 181.610 states in relevant part:
(16) “Public safety personnel” and “public safety officer” include corrections officers, youth
correction officers, emergency medical dispatchers, parole and probation officers, police officers,
certified reserve officers, telecommunicators and fire service professionals.
In the Matter of Colin W. Charbonneau, Page 1 of 7
OAH Case # 115234
EVIDENTIARY RULING
Exhibits A1 through A30 and A32 through A36, offered by the Department were
admitted into the record, along with Respondent's Exhibits R1 and R2.
FINDINGS OF FACT
(1) On August 18, 1993, Respondent was hired as a Corrections Officer by the
Washington County Sheriff's Office (WCSO). (Ex. A3.)
(2) On October 14, 1992, the Department issued to Respondent a Basic Corrections
Certificate. (Ex. A3.)
(3) On November 10, 1993, the Department issued to Respondent an Intermediate
Corrections Certificate. (Ex. A3.)
(4) On August 4, 1997, the Department issued to Respondent an Advanced Corrections
Certificate. (Ex. A3.)
(5) On January 8, 2003, Respondent was suspended and on January 22, 2003, he was
discharged for cause from employment as a Corrections Officer by WCSO. The Department was
forwarded notice of the discharge. (Ex. A4.)
(6) On November 17, 2002, Respondent was involved in a domestic disturbance at a
residence owned by Respondent and his estranged wife, who is a police officer. Respondent had
moved from the residence approximately three weeks earlier and had been staying with a friend.
A police investigation of the incident determined that Respondent had gone to the residence on
that date and his estranged wife had confronted him at an inside stairwell. A physical altercation
occurred, consisting of pushing and shoving. At the time, an off duty Portland officer, Richard
Deland (Deland), Respondent's estranged wife's boyfriend, was in an upstairs bedroom. When
Deland heard the commotion, he stuck his head out of the bedroom door to look down the
stairwell and see what was happening. When Respondent saw him, Respondent drew and
pointed his duty weapon at Deland causing him to fear for his life. Deland reported that if he had
had his firearm in his holster with him at that time, he would have shot Respondent. Respondent
was taken into custody for menacing. (Test. of Gordon, Ex. A11.)
(7) During a subsequent investigation, WCSO concluded that Respondent violated his
oath of office on October 15, 2002, including being untruthful regarding those events.
Specifically, the investigation concluded that Respondent's actions violated the following WCSO
policies:2
2
(a) G-2-1, subsection c; Staff must conduct themselves, on duty and off duty, in a manner that, in the
mind of a reasonable person, does not damage the positive public image, integrity, or reputation of the
Sheriff's Office.
(b) G-2-1, Section 25; Staff must not commit unlawful acts or behave in such a manner that has the
potential for endangering or injuring themselves, another person, or the property of another.
(c) G-2-10, Section F, subsection F-1; Any employee who fails to comply, by act or omission, with any
law, or with any order, procedure, rule or regulation of the Office, or who fails to perform their official
In the Matter of Colin W. Charbonneau, Page 2 of 7
OAH Case # 115234
(a) G-2-1, Section 1; Professional Conduct, subsection c;
(b) G-2-1, Section 25; Committing Unsafe Acts and Related Conduct;
(c) G-2-10, Performance of Duty; Section F, Neglect of Duty, subsection F-1;
(d) G-1-1, Mission and Values, Section A: Values, subsection A-1;
(e) G-2-1, Section 2; Truthfulness; and
(f) WCSO Oath of Office. (Ex. A12, A18.)
(8) The Washington County District Attorney chose not prosecute Respondent for
menacing because the victim did not want to prosecute. (Ex. A27.)
CONCLUSIONS OF LAW
(1) Respondent was discharged for cause as a public safety officer under ORS
181.662(3) and OAR 259-008-0070(2) (a).
(2) The Department is required to revoke Respondent’s basic and intermediate
corrections certifications based on her discharge for cause as a public safety officer under ORS
181.662(3).
OPINION
The Department has the burden of proving, by a preponderance of evidence, that
Respondent was discharged for cause. See ORS 183.450(2) and (5); Harris v. SAIF, 292 Or
683, 690 (1982) (general rule regarding allocation of burden of proof is that the burden is on the
proponent of the fact or position); and Cook v. Employment Div., 47 Or App 437 (1980) (in
absence of legislation adopting a different standard, the standard in administrative hearings is
preponderance of the evidence). Proof by a preponderance of evidence means that the fact
finder is persuaded that the facts asserted are more likely true than false. Riley Hill General
Contractors v. Tandy Corp., 303 Or 390 (1989). I find that the Department has met its burden.
1. Discharge for cause under ORS 181.662 and OAR 259-008-0070
duties or who acts in the performance of their official duties in a manner which could bring discredit upon
himself, upon the department, or upon any other member of the department may be considered in neglect
of duty.
(d) G-1-1, Section A, subsection A-1; Integrity. All members committed to the highest standards of
honesty influencing others by our positive example and ethical behavior.
(e) G-2-1, Section 2; Truthfulness: Staff must not lie, give misleading information, or falsify written or
verbal communications in official reports, or in their actions with another person or organization. Staff
will impart the whole truth when giving testimony or rendering an official report or statement.
(f) Washington County Sheriff's Office Oath of Office: "I, Colin Charbonneau, do solemnly swear, that
I will support the Constitution of the United States of America, the Constitution and Laws of the State of
Oregon, ordinances of Washington County, and the Rules and Regulations of the Washington County
Sheriff's Office. I will well and faithfully discharge the duties of the office of Washington County
Corporal, to which I have been appointed according to law and to the best of my ability."
In the Matter of Colin W. Charbonneau, Page 3 of 7
OAH Case # 115234
The court has addressed the scope of a discharge for cause hearing in Huesties v. Board
on Police Standards and Training, 95 Or App 17 (1989). There, Petitioner sought review of an
order of the Board on Police Standards and Training's (BPST) revoking a tribal police officer's
basic and intermediate police certificates after finding that the "officer has been discharged for
cause from employment as a police officer." The court held that the BPST could revoke a
police officer's basic and intermediate police certificates, on the basis that the officer has been
discharged for cause, after making an independent determination that cause existed, and need
not consider the officer's claim that discharge was retaliatory and not in compliance with federal
regulations relating to contractors with the Bureau of Indian Affairs.
Here, the Department is not re-evaluating whether the WCSO decision to discharge
Respondent was proper. Rather, as discussed in Huesties, the question is whether the
Department made a proper independent determination that cause existed for the discharge.
OAR 259-008-0070(2), provides in relevant part that:
The Department shall deny or revoke the certification of any police officer,
corrections officer, parole and probation officer, telecommunicator, emergency
medical dispatcher or instructor after written notice and hearing, based upon a
finding that:
(a) The officer, telecommunicator, or emergency medical dispatcher has been
discharged for cause from employment as a police officer, corrections officer,
parole and probation officer, telecommunicator, or emergency medical
dispatcher.
(b) For purposes of (a) above, "discharged for cause," means an employer
initiated termination of employment for any of the following reasons:
(A) Gross Negligence: means where the public safety professional's act or
failure to act creates a danger or risk to persons, property, or to the efficient
operation of the department, recognizable as a gross deviation from the
standard of care that a reasonable public safety professional would observe in a
similar circumstance;
(B) Insubordination: means a refusal by a public safety professional to comply
with a rule or order where the rule or order was reasonably related to the
orderly, efficient, or safe operation of the public or private safety agency and
where the public safety professional's refusal to comply with the rule or order
constitutes a substantial breach of that person's duties; or
(C) Incompetence or Gross Misconduct: in determining what constitutes
"incompetence or gross misconduct," sources the Department may take into
account include but are not limited to practices generally followed in the
profession, current teaching at public safety training facilities, and technical
reports and literature relevant to the fields of law enforcement,
telecommunications, or emergency medical dispatch.
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OAH Case # 115234
Respondent argues that the facts in this case do not show that there was any act or intent
by Respondent justifying this revocation action and that the Department failed to consider other
explanations for the event. Respondent presented evidence that his service weapon had slipped
for the holster in the struggle with his estranged wife. However, the preponderance of the
evidence is to the contrary. The facts support a conclusion that Respondent's actions created a
danger or risk to persons and constituted a gross deviation from the standard of care that a
reasonable public safety professional would observe in a similar circumstance. Respondent
failed to follow the policies reasonably related to the orderly, efficient, or safe operation of a
public safety agency and the failure constitutes a substantial breach of Respondent's duties.
Finally, Respondent did not follow the practices generally followed in the profession and current
teachings at public safety training facilities. These factors fall within the definition of gross
negligence, insubordination and gross misconduct, as set forth in OAR 259-008-0070(2)(b).
Consequently, I conclude that the Department has met its burden of proving that Respondent was
discharged for cause.
2. Revocation of Respondent's corrections certification
ORS 181.662(3), provides, in relevant part:
The department shall deny or revoke the certification of any public
safety officer or instructor, except a youth corrections officer or fire
service professional, after written notice and hearing consistent with the
provisions of ORS 181.661, based upon a finding that the public safety
officer or instructor has been discharged for cause from employment as
a public safety officer.
The evidence in this record establishes that Respondent was discharged for cause from
employment as a public safety officer. Having made such finding, the Department is required to
take this revocation action. The revocation action is authorized.
In the Matter of Colin W. Charbonneau, Page 5 of 7
OAH Case # 115234
PROPOSED ORDER
I propose that the Department issue the following order:
The Department hereby revokes Respondent’s basic, intermediate and advanced
corrections certifications.
___________________________________________
Paul Hegstrom, Administrative Law Judge
Office of Administrative Hearings
ISSUANCE AND MAILING DATE:
EXCEPTIONS
The proposed order is the hearing officer's recommendation to the Oregon Department of
Public Safety Standards and Training (Department). If you disagree with any part of this
recommendation, you may make written objections, called "exceptions," to the recommendation
and present written argument in support of your exceptions. Exceptions and argument must be
filed with the Department of Public Safety Standards and Training not later than fourteen (14)
days following the date of mailing of the proposed order at the following address:
Director
DPSST
550 N. Monmouth Avenue
Monmouth, Oregon 97361
FINAL ORDER
After considering all the evidence, the proposed order, and the timely filed exceptions, if
any, the Department will issue the final order in this case. The final order may adopt the
proposed order prepared by the hearing officer as the final order or modify the proposed order
and issue the modified order as the final order (see OAR 173-003-0665).
APPEAL
If you wish to appeal the final order, you must file a petition for review with the Oregon
Court of Appeals within sixty (60) days after the final order is served upon you. See ORS
183.480 et seq.
In the Matter of Colin W. Charbonneau, Page 6 of 7
OAH Case # 115234
CERTIFICATE OF SERVICE
I certify that on Sepetember 3, 2004 I served the attached Proposed Order by mailing first class
mail, in a sealed envelope, with first class postage prepaid, a copy thereof addressed as follows:
MARY A NESTER
ATTORNEY AT LAW
1515 SW 5TH AVE STE 1022
PORTLAND OR 97201
TIMOTHY THOMPSON
CRIMINAL JUSTICE DIVISION
610 HAWTHORNE AVE SE STE 210
SALEM OR 97301
MARINA WOLFARD
CRIMINAL JUSTICE DIVISION
610 HAWTHORNE AVE SE STE 210
SALEM OR 97301
THERESA KING
STANDARDS AND CERTIFICATION
DPSST
550 N MONMOUTH AVE
MONMOUTH OR 97361
Michelle Suffian-Chilton
Administrative Specialist 2
Office of Administrative Hearings
Transportation Hearings Division
In the Matter of Colin W. Charbonneau, Page 7 of 7
OAH Case # 115234